Info/Law

The Oregonian reports that Adidas won an astronomical $305 million trademark infringement verdict against discount retailer Payless Shoes this morning. Trademark blogger Marty Schwimmer can’t think of another infringement verdict even close to this size, and neither can I. Most trademark litigators would consider any case worth more than $25 million a very big one.

Payless lost most of its key legal arguments in a set of pretrial rulings back in February, as Rebecca Tushnet explained at the time. But even if one might have predicted an Adidas victory at that point, I think its magnitude is pretty surprising. It doesn’t look like this award is vulnerable to a due process attack in the vein of BMW v. Gore and State Farm, however, because the punitive damages appear to have been calculated to represent double the Payless profits attributable to the infringement ($30.6 million in actual damages, $137 million in profits, and $137 million in punitive damages). In those cases, by contrast, the ratio of punitive to actual damages was many times greater (145:1 in State Farm).

The dispute centers on 268 different Payless sneakers with parallel stripes. (Images here.) Adidas has a trademark for three parallel stripes on the side of a shoe. The jury found that all but one of the Payless versions, with various numbers of stripes on the side, infringed on that trademark.

Some might consider those stripes a pretty basic aspect of sneakers. I remember all my sneakers as a kid looking like that, and I think they were usually Keds. Indeed, one of my 4-year-old daughter’s favorite books, Alexander and the Terrible, Horrible, No Good, Very Bad Day, written in 1972, illustrates the point very nicely (sign into Amazon here for the image):

So then we went to the shoestore to buy some sneakers. Anthony chose white ones with blue stripes. Nick chose red ones with white stripes. I chose blue ones with red stripes but then the shoe man said, We’re all sold out. They made me buy plain old white ones, but they can’t make me wear them. … It was a terrible, horrible, no good, very bad day.

I think the Payless attorneys know just how you feel, Alexander. (”The jury found that stripes on sneakers identify Adidas as their source in the public mind, and I still have to pay the lawyers, and now we have to file the post-verdict motion to set aside the damages and then the appeal. And I have to wear my railroad train pajamas, and I hate my railroad train pajamas.”)

[Cross-posted on Concurring Opinions]

4 Comments »
Filed under: Court Decisions, Trademarks

Thanks to the Concurring Opinions gang for inviting me back for another visit!

I will leave it to the likes of the incredible Rick Hasen and SCOTUSBlog’s Lyle Deniston — among many, many others — to talk about the important election law elements of Monday’s Supreme Court decision on voter identification in Crawford v. Marion County Election Board. But if you are a hammer everything is a nail, and if you are a privacy scholar every newspaper story is about privacy. And the privacy implications here are rather clear.

Quite appropriately, the case was briefed, argued, and decided on the basis of the burden that Indiana’s identification requirements placed (or didn’t place) on the right to vote. The seminal cases were Harper v. Virginia Board of Elections, which held the poll tax unconstitutional, and its progeny. Other key sources cited in the opinions included the Carter-Baker Commission report and two recent federal electoral reform statutes, the motor voter law and the Help America Vote Act. The burdens considered by both the lead opinion and the dissents were pragmatic ones, largely monetary cost and inconvenience.

What about privacy burdens?

Election law doctrine does not leave much room for their consideration. In other contexts, identification requirements are viewed as potential privacy intrusions. The continuing controversy and the backlash in state legislatures against the federal Real ID Act (see, e.g., here and here) is one such area. Likewise, the 2004 decision in Hiibel, though it upheld state “stop-and-identify” laws allowing police officers to demand that a suspect disclose his or her name, was also analyzed primarily as a privacy issue.

But in Crawford, there is no mention of the privacy impact of turning voting into yet another important activity that you cannot accomplish without “showing your papers.” And since it is now basically impossible to board an aircraft, enter a federal building, or cash a check without showing ID, voter ID requirements become just another event in an accelerating trend toward an ID society.

I’m not necessarily saying that Crawford was wrongly decided. But it is remarkable that “ID creep” has played such a small role in both the legal argument and the news coverage related to this controversial case. Indeed, I suspect that crabwise movement toward a de facto ID requirement, through individual rules that necessitate ID in more and more settings, is worse than a straightforward debate on a national ID card. Great Britain is going through that debate now (see, e.g., here and here); if the end result is a true national ID then at least all the arguments for and against will be fully aired. Just a thought.

[Cross-posted at Concurring Opinions.]

No Comments »
Filed under: Court Decisions, Privacy, Voting, Anonymity

The New Jersey Supreme Court issued a unanimous decision on Monday ruling that the state’s constitution goes further than the United States Constitution by requiring a warrant before the government can obtain subscriber information from an information service provider (such as linking a name to an IP address). Under controlling Fourth Amendment precedent, individuals have no expectation of privacy in subscriber data held by their ISP. This decision continues the Garden State’s tradition of rejecting a “third party doctrine” under its state constitution. Under that widespread doctrine, applicable in federal court and most states, financial records that are held by your bank or logs of the telephone numbers you’ve dialed that are held by the phone company are unprotected — because they are held by third parties, no longer in your sole control. New Jersey had previously rejected the doctrine in the context of bank and telephone records. While many states track federal constitutional law in this area, there is a bewildering array of caveats and exceptions.

According to the Newark Star-Ledger, this is the first time a state Supreme Court has ruled that ISP records are private. Nevada and Minnesota both have statutes to that effect, however. And, as Ars Technica warns, changing technology may undermine the logic of the New Jersey ruling:

The justices say that IP addresses are sufficiently anonymous to justify privacy protection because, theoretically, only the Internet service provider can identify who is associated with a specific IP address. … [T]hat could change if the technology ever evolves in a manner that makes it easy for individuals to identify who is associated with an IP address.

Moreover, the effect is limited in two significant respects: it will not apply in federal court, and it isn’t difficult for the police to meet the requirements to get a warrant. That may be the right balance, however: enough judicial supervision to constitute a speed bump and prevent irresponsible dragnet investigations, but not so much that it really impedes criminal investigations.

No Comments »
Filed under: Minnesota, Court Decisions, Internet & Society, ISP, Intermediaries, Privacy, Anonymity

My new project involves examining legal protections for the public domain under United States copyright law. There’s a doctrinal component to that — what does the law say? — as well as a normative component — why should we care? It’s that latter question that I’ve been noodling around lately.

Anyone who looks for indications that copyright policymakers in the United States (including both Congress and the federal bench) share the belief, held by many legal academics, that a robust public domain is necessary to foster future creative production, is bound to be a little surprised: the evidence is actually fairly equivocal that Congress and the courts actually hold any such view. Even the language Congress and the courts employ seems, if anything, to be skeptical of the value of the public domain: it’s routine to speak of works “falling into” the public domain, which conjures to mind somebody clutching the ledge of a tall building, hanging on for dear life: quick, that work is about to fall! Won’t somebody save it?

The broadest judicial recognition of the value of the public domain that I’m aware of comes from Judge Kozinski’s memorable dissenting opinion in White v. Samsung Electronics, 989 F.2d 1512 (9th Cir. 1993), which wasn’t even a copyright case:

Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.

Id. at 1513. Later, Judge Kozinski continued:

To paraphrase only slightly Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), it may seem unfair that much of the fruit of a creator’s labor may be used by others without compensation. But this is not some unforeseen byproduct of our intellectual property system; it is the system’s very essence. Intellectual property law assures authors the right to their original expression, but encourages others to build freely on the ideas that underlie it. This result is neither unfair nor unfortunate: It is the means by which intellectual property law advances the progress of science and art. We give authors certain exclusive rights, but in exchange we get a richer public domain. The majority ignores this wise teaching, and all of us are the poorer for it.

Id. at 1517.

I’d like to be able to illustrate Judge Kozinski’s point for skeptical colleagues and friends by citing specific examples of particularly noteworthy works of art that are based on public domain source materials — in simplest terms, I’m interested in contemporary remixes of public domain works. (I appreciate that this is a narrower conception of the influence of the public domain on later creators than Judge Kozinski is actually talking about, but it makes for relatively comprehensible examples.) So, for example, we might say that West Side Story is thought to be a pretty effective transformation of Romeo and Juliet: it takes Shakespeare’s public domain play and makes of it something new, different, and by some measures at least, better.

The problem, of course, is that many remixes don’t remotely improve on the artistic value of the original. I’ve yet to meet anyone competently acquainted with both The Iliad and Troy who sees much worth in the latter. (Which is not to say that a dynamite modern retelling of The Iliad couldn’t be written; one of my old English profs, among others, has done so.) I was a kid during the disco era, during which it seemed like A Fifth of Beethoven was playing constantly; but that work, too, has not exactly held its own against the better-known public domain original. And you can probably think of others.

What are your nominees for the best/worst remixes of public domain works?

3 Comments »
Filed under: Internet & Society, Copyright

Via Boing Boing comes a story about the State of Oregon asserting copyright over its official codification of state laws, the Oregon Revised Statutes. The state’s Office of Legislative Counsel has been sending out C&Ds to groups like Justia and public.resource.org, demanding that they take down their copies of the state laws. The groups are responding with letters of their own arguing that the statutes are in the public domain as a matter of federal copyright law and that Oregon state law allows them to be freely reproduced. My analysis after the break. Read more…

5 Comments »
Filed under: Open Access, Internet & Society, Digital Media, Education & Copyright, Intermediaries, Copyright, Scholarship